The following unpublished decision by the Court of Appeals offers some black letter law on the accrual of a tort claim applying the discovery rule on a premises liability case. Note the claimant fell in an obscure hole believing it was under the control of the school but discovery after a year had passed that it contained a release value maintained by the City. Alas, there is the problem regarding suit against the proper party and failing to commence the cause of action within one year of the fall. The claimant asserted that suit was filed within one year of her discovering who did maintain the hole and the air valve (which she did not note at the time of her fall or later when she and her husband examined the hole on the school property).
590. STATUTE OF LIMITATIONS. DISCOVERY.
BLAND (MARY)
VS.
CITY OF MT. WASHINGTON , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (DISSENTS AND FILES SEPARATE OPINION) AND MOORE (CONCURS)
2011-CA-001239-MR
NOT TO BE PUBLISHED
BULLITT
CAPERTON, JUDGE: The Appellant, Mary Bland, appeals from a personal injury action in which the trial court entered a directed verdict on the issue of notice at the close of her case against the Appellee, City of Mount Washington. The final order entered by the court added additional grounds for dismissal that had previously been rejected via motions for summary judgment. This appeal followed. Upon review of the record, the arguments of the parties, and applicable law, we affirm.
To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.
Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.
STATUTE OF LIMITATIONS, TOLLING AND DISCOVERY RULE:
Bland also argues that Kentucky has adopted the discovery rule for those who act with due diligence, and that the discovery rule is applicable to this matter. She argues that the discovery rule, set forth in Kentucky Revised Statutes (KRS) 412.140, delays accrual of the statute of limitations until discovery takes place, or reasonably should have taken place.
Concerning the applicability of the discovery rule to this case, Mount Washington asserts that it clearly does not apply and asserts that Kentucky law mandates its use only when injuries are latent. Mount Washington states that in this instance Bland was immediately aware of her injury and began medical treatment shortly thereafter. Mount Washington argues that the evidence submitted by Bland indicates that she did no investigation to determine the reason for the hole’s placement or the contents of the hole, either of which would have led her to determine if it was a utility. Mount Washington asserts that Bland did not attempt to speak to anyone at the school to determine the hole’s ownership.
In addressing this issue, we note that KRS 412.140, the “discovery rule,” states in pertinent part that:
(1)The following actions shall be commenced within one (1) year after the cause of action accrued:
(a)An action for an injury to the person of the plaintiff ….
In Hazel v. General Motors Corporation, 83 F.3d 422 (6th Cir. 1996), the court explained Kentucky’s discovery rule as follows:
Kentucky’s discovery rule provides that a cause of action does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both his injury and the responsible party. This rule is designed to protect the blamelessly ignorant plaintiff from losing the right to recover for an injury during the period in which the injury may remain inherently unknowable to the plaintiff. The typical scenarios for the application of the rule include medical malpractice and latent disease cases. Plaintiff argues that he had no reason to know that the design of the fuel system may have caused his injury until he watched the “Dateline” segment years later and that the cause of action did not accrue until that time.
Id. (internal citations omitted).
While Bland attempts to rely upon this case as support for her assertion that the discovery rule applies to her case, we disagree. We note that in McClain v. Dana Corporation, 16 S.W.3d 320 (Ky. 2000), this Court, in discussing the discovery rule, held that:
The discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is fraudulent concealment or misrepresentation by the defendant of his role in causing the plaintiff’s injuries. A person who has knowledge of injury is put on “notice to investigate” and discovery, within the statutory time constraints, the identity of the tortfeasor.
Further, we note that, as stated by our Supreme Court in Fluke Corp. v. Lemaster, 306 S.W.3d 55, 60 (Ky. 2010):
The discovery rule is available only in cases where the fact of injury or offending instrumentality is not immediately evident or discoverable with the exercise of reasonable diligence, such as in cases of medical malpractice or latent injuries or illnesses.
Sub judice, there was no question that Bland knew she had fallen into a hole, and that the fall was directly responsible for her injury. Bland immediately sought treatment for the injury, and shortly thereafter filed suit against the Bullitt County Board of Education. There was nothing latent about her injury, nor was the instrumentality hidden or unable to be discovered with the exercise of reasonable diligence.
To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.
Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.
Concerning Bland’s argument that negligence can be imputed to Mount Washington, it again asserts that there was a complete absence of proof to support this charge. Mount Washington asserts that there was no evidence submitted to establish that it had any knowledge of the missing meter cover or air release valve prior to the time that Bland stepped into the hole. Additionally, Mount Washington argues that there is no evidence that it failed to exercise the appropriate care in maintaining the cover in a reasonably safe condition and indeed, asserts that immediately after obtaining knowledge that the cover was no longer on the hole, had it replaced.
In addressing this issue we note that KRS 413.190(2) provides as follows:
When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action, the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced.
The law in this Commonwealth is clear that by either statutory or equitable estoppel, the actions taken by Mount Washington must have been calculated to mislead or deceive, and to induce inaction by the party. See Adams v. Ison, 249 S.W.2d 791 (Ky. 1952). As the Court stated in Fluke, the essential elements of equitable estoppel require appellants to show:
(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.
Id. at 62 (citing Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government, 265 S.W.3d 190, 194-95 (Ky. 2008)).
Sub judice, there was simply no evidence that Mount Washington took any action to mislead or deceive Bland, nor any evidence to suggest that the utility company did anything to prevent discovery of the true owner of the air release valve. Accordingly, we decline to reverse on this basis.
